Tolkien Estate 'Settles' Dispute Over Historical Fiction Book With JRR Tolkien As A Character

from the too-bad dept

In one of the many, many overreaches by the Tokien Estate, it threatened author Stephen Hillard, who has written a bit of historical fiction combined with literary criticism, called Mirkwood, which uses a fictionalized JRR Tolkien as a character. The Tolkien Estate sent a cease-and-desiste, and Hillard smartly sued for declaratory judgment. Apparently the two sides have worked out their differences and have settled the lawsuit, which will allow the book to be published. However, Hillard does have to make a few small changes:

According to the settlement, the book will now be released with a modified reference to Tolkien on the cover and will also include the disclaimer, "This is a work of fiction which is neither endorsed nor connected with The JRR Tolkien Estate or its publisher."

I certainly understand why a settlement would be reached, but really it's too bad that any changes were made. Hillard had a strong case, and the estate had little or no case. Yet, now that it was able to pressure the author into making some changes (even if they were small), it emboldens the estate to continue its silly and counterproductive campaign.

Reader Comments

I really love Tolkien and all of his books. I really do. Yet, the actions of his estate are really ticking me off. Seems to be almost enough to make me want to stop buying anything associated with him.

Seems like a lot of work...

for a disclaimer, one that could have easily been typed up by the author (and quite possibly was there to begin with). That's sort of like the standard "any relation to persons living or otherwise is coincidental" [exact wording?] that gets thrown into the credits of every movie.

Thank you tolkien estate, without that disclaimer, I would have been writing you the next day about JRR Tolkien's adventures in mirkwood and certainly would like to see any photographs of it. That was a close one. Just think, what if it got accidently put into the non-fiction section. The chaos it would cause! *shudder*

Actually, it's the reverse: what everyone seems to be forgetting is that apart from using Tolkien as a character, Hillard was using his characters, settings and names too. Hell, the very name of the book is Mirkwood. People just latched onto the idea of the Tolkien estate trying to enforce copyright on a historical figure and conveniently forget the fact that Hillard's writing fanfiction and getting money for it despite Tolkien not being in the public domain. People also seem to forget that there have been a number of books featuring Tolkien as a character who *weren't* sued by the Tolkien estate, and rather than assume that Hillard was doing something a little more than just that, they prefer to imagine Hillard as a feisty creative man battling the evil forces of the Tolkien Estate living off the fat of Middle-earth.

I love the stories of little creative types going against big bad corporations, but in this case, Hillard most certainly was infringing on the Tolkien Estate's copyright, and the latter were well within their rights to complain.

Re:

Actually, you're wrong. Tolkien, and by extension, his estate, do have a copyright on his books, true. However, as far as I can determine, the estate doesn't have a copyright on every single made up word that was featured in the books.
So what if the book is called Mirkwood? There's no copyright on the word.
Also, the idea you have that this "fanfiction" should not make money is something I don't agree with. What is culture but shared ideas? What Hillard did here was take a popular piece of culture and build from it. Just like Tolkien used Norse legends when he first wrote the Hobbit (the dragon Smaug was not his creation, just the name, but certainly not the idea of a dragon resting on a pile of treasure and instantly being aware if a single piece is stolen). By your standards, what Tolkien himself wrote was fanfiction based on Norse legends and thus, he shouldn't have published it.

Lastly, copyright on a historical figure? That doesn't even make sense. Copyright is supposed to be for the progress of Arts and Sciences. Where does being a famous figure come into play? So only the Tolkien Estate can write articles/books/etc that have the Tolkien character?

Re:

Hillard most certainly was infringing on the Tolkien Estate's copyright, and the latter were well within their rights to complain.

WRONG!

It isn't called "similar-right", it's called copyright. The uterus turds which currently make up the Tolkien estate are greedy little rats with no ability to earn their own income seeking to live in perpetuity off of another's efforts.

Copyright protects expressions, NOT IDEAS.

Apologies in advance: I haven't commented in a while and I'm in a terrible mood.

You, and everyone who thinks like you, should be sent to some type of re-education camp to have the stupid beaten out of you. People can't own ideas, it doesn't work that way in theory or in practice. Virtually everything you have touched, looked at, eaten, or heard today was created, enhanced, or modified by human beings using their collective knowledge.

You have never read a book that wasn't inspired by other books. You have never eaten a meal that wasn't developed based on centuries of research. You have never heard a song that wasn't influenced by the past and present.

The attitude displayed by you, and others like you, is one of ingratitude. You are clinically incapable of realizing your dependence upon other human beings. Ideas and the ability to share those ideas are what separates human beings from other animals. Anyone who believes that ideas can be owned and shouldn't be shared are no better than animals and should be treated as such.

Those suits make more and more sense. Because so many people settle or are simply scared away from using brands and real people in their works, it is becoming more and more reasonable to assume that the use of a brand implies endorsement.

Research in Fiction

This was something I grappled with while writing my own novel, which was in fact based on a screenplay. Screenwriters have a tendency not to think their research through, because it's so rare that a studio gets sued over a screenwriter's use of ... well, of anything. But when I turned the script into a historical novel set in 1899 and featuring actual historical figures -- I began to wonder if their estates would come after me.

Or if perhaps someone out their had an unofficial trademark or copyright over intellectual property rights, that covered any historical context I was portraying. I eventually found out that a group had attempted to out and out trademark one historical incident I was writing about, and separately, that many, many individuals had attempted at one time or another to trademark or copyright another well-known piece of history, I was writing about. Fortunately, the efforts were always frowned upon by Judges, unanimously.

But I "never" even considered portraying a person like Tolkien. Mainly because, just like Edgar Rice Burroughs, his very name has been copyrighted by his estate. And that will in fact last for many years to come. And his estate, much like that of Edgar Rice Burroughs, are known for being litigious.

Not to bust the guys chops, but the writer should have checked on that first. Had he simply Google'd "J. R. R. Tolkien - Estate," he would've backed, way, way off. None of us like having our creativity infringed upon, but you have to learn to stay out of trouble.